Masonry Magazine October 1982 Page. 11
NLRB Awards Forklifts to Laborers
In Two Significant Decisions
The National Labor Relations Board awarded the operation of forklifts to employees of D. H. Johnson Co. of DuPage County, III., and McWad, Inc. of Wausau, Wis., represented by the Laborers Union rather than to members of the Operating Engineers Union.
The two decisions are very helpful in supporting the continued efforts of MCAA to preserve the work assignments made by its members. The benefits of membership in MCAA were clearly in issue in one case where the International Agreement with the Laborers overcame the argument that the case was to be decided by the Joint Conference Board. The second case involved the effect of a subcontracter clause between the Operating Engineers Union and the general contractor and the action that the mason contractor can take to protect the relationship with the general contractor without giving up the jurisdictional claim.
International Agreement Prevails
The significant and pivotal issue in the D. H. Johnson Co. case was the use by the NLRB of the International Agreement between the Mason Contractor Association ("MCAA") and the Laborers International Union in resolving the dispute. The Laborers/MCAA Agreement contains a clause that obligates contractors to submit all jurisdictional disputes to the International Office of the Union and Executive Office of MCAA for resolution. The Agreement further provides that this procedure for handling jurisdictional disputes is exclusive and supersedes all other procedures that may be in any agreements between a member of the MCAA and any local union.
The NLRB in the D. H. Johnson Co. case ruled that the clause contained in the Laborers/MCAA Agreement precluded a finding by the NLRB that there was a prior agreed upon method of resolving the jurisdictional dispute and the NLRB was able to rule on the issue.
Before the National Labor Relations Board can proceed with a jurisdictional dispute to award work to members of one union over another, the Board must find that there is no disputes resolution machinery binding on all parties. Federal labor law strongly favors the arbitration of all labor disputes. Many jurisdictional disputes cannot be heard by the National Labor Relations Board because they are subject to the procedures of the Impartial Jurisdictional Disputes Board or some similar body. It was argued by the Operating Engineers that the D. H. Johnson Co. was contractually bound to a short form agreement signed many years ago to cover payments to a welfare fund.
The NLRB in the D. H. Johnson Co. case ruled, however, that even assuming the existence of an agreement that bound the Operating Engineers and the Employer to the Impartial Jurisdictional Disputes Board, the existence of the equally binding MCAA/Laborers International Agreement precluded a finding that there was an agreed upon method of dispute resolution. Once this determination was made, the NLRB went on to consider the merits of the case. Based on the merits the NLRB awarded the work to employees of D. H. Johnson Co. represented by members of the Laborers Union.
In the decision involving McWad, Inc., the NLRB was presented with the contention of the Operating Engineers that the general contractor controlled the assignment of the disputed work because the mason contractor, McWad, Inc., gave back the operation of the forklifts to the general contractor when the Operating Engineers requested arbitration of an alleged breach of the general contractor's agreement with the Operating Engineers concerning the subcontractor clause. The Labor Board carefully reviewed the facts and held that McWad, Inc. maintained the right to control the operation of the forklifts and did not give this control to the general contractor even though the forklifts were operated by employees of the general contractor and, therefore, the preference of McWad would prevail.
The Operating Engineers urged the NLRB to decide the case based upon the general contractor's preference with respect to forklifts because the mason contractor returned the operation of the forklifts when faced with a possible financial claim by the general contractor if the Operating Engineers were successful in arbitrating the subcontractor clause. The issue and impact of subcontractor clauses is complicated and the factual relationships between the parties are the deciding factor in which way the NLRB will rule. It was, for example, essential that it was the mason contractor, McWad, Inc., who agreed to give the work back to the general contractor rather than having the work taken by the general contractor pursuant to some contractual provision.
Vital Issues Involved
These two cases, D. H. Johnson and McWad, Inc., should be carefully studied by mason contractors and their legal advisors. Contractors should work toward avoiding any contractual involvement with any unions other than Bricklayers and Laborers. Proper efforts should be made to cancel all possible outstanding collective bargaining agreements except those that you wish to maintain. All existing collective bargaining agreements should be reviewed to see if they properly treat jurisdictional matters. A contractor cannot establish that it is not legally bound to the terms of a collective bargaining agreement if the contractor has been operating under the terms and conditions of the agreement and employing workers pursuant to the provisions of a labor contract.
MCAA members have received the cooperation of the Laborers union. When confronted with further jurisdictional disputes, communication should begin immediately with the business agent for the Laborers. The Laborers should assert their jurisdic-